19 S.E. 782 | Va. | 1894
delivered the opinion of the court.
On the 9 th December, 1889, the plaintiff in error sued out of the clerk’s office of the court below a summons in an action of trespass on the case against the Bertha Zinc Company, returnable to second January rules, 1890. The process went into the sheriff’s hands on the l?th of the same month, and was never executed. The officer, it seems, £ ‘took it back to the clerk’s office, and left it with the clerk, but
The question is an important one, but is not presented to this court for decision, because the order complained of is not a final judgment, anda writ of error in a civil action lies only to the final judgment. Code, § 3454. The order holds that the summons dated January 29, 1890, is void as an alias, but good as an original process, and that its date is the date of the commencement of the action ; thus, in effect, holding that there had been a discontinuance, by reason of the failure to sue out an alias at the rules to which the summons issued in December, 1889, was returnable. But whatever effect this order may have upon reultimate determination of the rights of the parties (as to which, in the present situation of the case, we can know nothing judicially), it is in no sense final in its character. On the contrary, it leaves 4he case open for future adjudication ; and it appears that, after it was entered, the defendant filed two pleas, upon which the plaintiff joined issue ; so that, in this state of things, we cannot know from the record that the plaintiff has been prejudiced by the order. At all events, the writ of error must be dismissed as having been improvidently awarded. Writ of error dismissed.